Tenant Farming Commissioner functions: review

5. Referral of questions of law to Land Court

The Tenant Farming Commissioner may refer to the Land Court for determination any question of law which may competently be determined by the Land Court. As can be seen in Table 7, 94% of respondents agree or strongly agree that this should be a function of the Tenant Farming Commissioner. For many of the respondents, this function equips the Tenant Farming Commissioner with legal clarity and may reduce the volume of "expensive" legal cases being brought.

As one respondent said:

'The TFC needs power to get clarification from Land Court which will inform landlords and tenants as to the law in areas of doubt. It will reduce controversial and expensive cases being brought.'

And another said:

'It is crucial that the TFC should be able to consult the Land Court, to add weight to his advice to landlords and tenants with a problem. The TFC is in an excellent position to mediate in a dispute and stop a disagreement from becoming an expensive court case.'

Other respondents were concerned, however, that this function may be off-putting for tenants and landlords who may feel intimidated by the involvement of the Land Court and who may consider it a financial risk. As one respondent explained:

'The Land Court retains the same stigma attached to it that it always has and is a fairly unapproachable prospect for many. The threat of others knowing your business, fees building up unsustainably for a farming business, especially where the outcome may not be in their favour. Both parties need to be prepared and willing to have their case settled by the Land Court, but if not, it can have the opposite effect than what it is intended for exacerbating the breakdown of relationship, and un-balanced relationships between landlords, tenants and agents.'

And another said:

'He [the Tenant Farming Commissioner] can take landlords or tenants there [the Land Court] but it all comes down to cost. Most tenants won't risk the financial cost of taking a case there. The TFC needs to have power to look at cases out of court and make legal judgement.

As seen in Table 8, 44% of respondents agree or strongly agree that the Tenant Farming Commissioner has sufficient powers to refer questions of law to the Land Court. 9% disagree or strongly disagree.

In his response to this review, the Tenant Farming Commissioner explains that this function has not yet been formally exercised. He notes, however, that 'it remains a useful option for the TFC in circumstances where uncertainty over interpretation of relevant legislation has implications for a significant number of people. It should not be used to enable an individual to gain access to free legal advice.'.